Rajasthan High Court
Fathe Son Of Ram Chandra vs State Of Rajasthan (2024:Rj-Jp:38731) on 4 September, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:38731]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 713/2024
IN
S.B. Criminal Appeal No.2921/2023
Fathe Son Of Ram Chandra, R/o Bedham, Police Station Khoh,
District Bharatpur. (At Present Confined At Central Jail Sewar,
Bharatpur)
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Vijay Singh Son Of Shri Jormal, R/o Village Bedham P.s.
Khoh District Bharatpur (Raj)
----Respondents
For Petitioner(s) : Mr. Gordhan Singh Fauzdar
For Respondent(s) : Mr. Amit Punia, PP
Mr. Shyam Bihari Gautam for
Mr. Aniket Sharma
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
04/09/2024
1. Heard learned counsel for the applicant-appellant and
learned Public Prosecutor on the application for suspension of
execution of sentence. Perused the material available on record.
2. The applicant-appellant herein has been convicted for offence
under Section 3/4 of POCSO Act vide judgment dated 11.09.2023
passed by Special Court, POCSO Act & Commission for Protection
Child Right Act No.2. Bharatpur (Raj.) in Sessions Case
No.05/2022 and has been sentenced to maximum punishment of
twenty years.
[2024:RJ-JP:38731] (2 of 5) [SOSA-713/2024]
3. Learned counsel for the applicant submits that learned trial
court has erred in convicting and sentencing the applicant as
mentioned above. Learned trial court has not appreciated the
evidence in right and correct perspective. Counsel submits that
the incident was alleged to occur in the intervening night of
03.10.2021 & 04.10.2021 whereas, the FIR has been lodged at
about 05:41 PM on 05.10.2021. Thus the FIR has been lodged
with delay. He further submits that from the statement of
prosecutrix and the complainant, it appears that a quarrel took
place between the grandfather of the prosecutrix and the
appellant and therefore, under enmity, this false case was lodged
against the appellant. The prosecutrix alleged in her statement
under Section 161 Cr.P.C. that the appellant committed rape upon
her in the Nohra of one Girraj whereas in the court statement, she
changed her version and stated that the appellant committed rape
upon in his Nohra. He also submitted that the accused was
arrested on 23.11.2021 whereas his medical examination was
conducted on 22.11.2021 which is improbable and creates doubt
on the prosecution story. As per the statement of Dr. Ankita (PW-
12), who conducted medical examination of prosecutrix, the hymn
of prosecutrix was found previously ruptured and she was habitual
of sexual relations/intercourse. Counsel submits that no sign of
sexual violence was found on the body of the prosecutrix. PW-12
Dr. Ankita has also stated in her cross-examination that the
possibility cannot be ruled out that prior to the alleged incident,
prosecutrix participated in sexual activities many a times. As per
Dr. Ankita, the prosecutrix was between 13 to 18 years old. Her
[2024:RJ-JP:38731] (3 of 5) [SOSA-713/2024]
height was 5.2 feet and her weight was 40 Kgs. at the time of
medical examination. It is also contended that samples were sent
to the FSL after some delay which creates doubt on the
prosecution story. Counsel submits that appellant is in custody
since 23.11.2021 and as such he has suffered sentence of about 2
years & 10 months. He argues that there is no immediate prospect
of early hearing and disposal of the appeal.
4. Learned Public Prosecutor assisted by the learned counsel for
complainant vehemently opposes submissions made by the
learned counsel for appellant. They submit that prosecutrix has
levelled allegation of rape against the appellant who is minor.
Thus, the appellant is not entitled for suspension of execution of
sentence.
5. Upon a consideration of the arguments advanced on behalf
of the appellant and having regard to the facts and circumstances
as available on the record, especially the fact as per the evidence
of PW.12 Dr Ankita, the prosecutrix was aged between 13 to 18
years; no sign of sexual violence/injury was found on her person
so also considering the statement of medical officer that the
prosecutrix was previously involved in sexual
activities/intercourse; the accused was medically examined one
day prior to his arrest; appellant has already suffered a period of
incarceration of about 2 year & 10 months and hearing of the
appeal will take long time, but without making any comment on
the merits/demerits of the case, this Court is of the opinion that
the appellant has available to him strong grounds to assail the
impugned judgment of conviction and sentence. Thus, it is a fit
[2024:RJ-JP:38731] (4 of 5) [SOSA-713/2024]
case for suspending the sentences awarded to the accused
appellant during pendency of the instant appeal.
6. Accordingly, the application for suspension of sentence filed
under Section 389 Cr.P.C. is allowed and it is ordered that the
sentences passed by the Special Court, POCSO Act & Commission
for Protection Child Right Act No.2. Bharatpur (Raj.) vide
judgment dated 11.09.2023 in Sessions Case No.05/2022 against
the appellant-applicant Fathe Son Of Ram Chandra shall remain
suspended till final disposal of the aforesaid appeal and he shall be
released on bail, provided he executes a personal bond in the sum
of Rs.50,000/- with two sureties of Rs.25,000/- each to the
satisfaction of the learned trial Judge for his appearance in this
court on 15.10.2024 and whenever ordered to do so till the
disposal of the appeal on the conditions indicated below:-
1. That he will appear before the trial Court in the
month of January of every year till the appeal is
decided.
2. That if the applicant changes the place of
residence, he will give in writing his changed
address to the trial Court as well as to the counsel
in the High Court.
3. Similarly, if the sureties change their address(s),
he will give in writing their changed address to the
trial Court.
7. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be registered as
Criminal Misc. Case related to original case in which the accused-
applicant was tried and convicted. A copy of this order shall also
[2024:RJ-JP:38731] (5 of 5) [SOSA-713/2024]
be placed in that file for ready reference. Criminal Misc. file shall
not be taken into account for statistical purpose relating to
pendency and disposal of cases in the trial court. In case the said
accused applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(ANIL KUMAR UPMAN),J
GAUTAM JAIN /106
Powered by TCPDF (www.tcpdf.org)
